Domestic Relations: No-Fault Divorce

By the late nineteenth century the private world of the family was increasingly subjected to public scrutiny. This trend continued throughout the twentieth century. Law

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makers, for example, intervened in such matters as child custody, legitimacy of bastard children, abortion, contraception, teenage sexuality, artificial insemination and surrogate motherhood, and the control exercised by parents and educators over children. Social welfare agencies exercised discretion in judging the fitness of parents to retain their children.

An equally important development, however, was the increasing incidence, discussed in the following chapter, of the Supreme Court's involvement with the family. In an age of rights consciousness, people challenged the traditional hegemony exercised by the states over the family, seeking through litigation in the federal courts to privatize matters such as abortion and contraception.

Divorce law, however, was the one area in which the authority of the state and of judges in particular receded and, as in tort law, a no-fault standard gained acceptance. The deregulation of divorce law was a vivid example of the way in which changes in general cultural and social practices forced new lines of development in the legal culture. The modern companionate family had shed many traditional functions, making the family increasingly a source of love and companionship. Divorce became common because, with expectations of marriage so high, "it was inevitable that they [would] not be fully achieved." ⁴² Furthermore, as women entered the work force in growing numbers, the possibilities of their escaping from an unsatisfactory marriage increased.

Many states during the Progressive era had modified many of the stiff requirements imposed by nineteenth-century law on divorce. But the notion of immorality and the consequent need to establish blame in order to end a marriage died hard. The ship of divorce law, however, foundered under the weight of the world's highest divorce rate; it had become "a fake" that "cheapen[ed] not only the tribunal but the members of the legal profession who [were] involved." ⁴³ The dramatic increase in the divorce rate placed enormous pressures on the legal system and removed the former stigma that had been attached to the practice.

No-fault divorce first appeared in California in 1970. The California statute, which served as a model for the rest of the country, provided that either party in the marriage could assert that the union had broken down and dissolve it without providing an explicit basis (e.g., cruelty, irreconcilable differences) for doing so. No-fault divorce was cheap, easy to obtain, and quick. Only matters of custody and child support. remained, and these tasks fell to divorce and family courts. The system quickly swept the country; in 1987 only Illinois and South Dakota did not have some form of no-fault divorce.

Date: 2015-01-29; view: 664